James Madison was a principal author of the United States Constitution.  He was also a great proponent of property rights.  Thus, it is particularly sad and ironic that property rights seem to have received short shrift for reasons of political expendiency.  Indeed, this was a fear of Madison.  I thought the Fourth of July was a good time to remind people of Madison’s wisdom on property rights and the role of government: 

“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”

“The rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted.”

“As a man is said to have a right to his property, he may be equally said to have a property in his rights.”

“In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.”

A quote for all the Judicial Activists out their attempting to make a living Constitution—This is what the author of the Constitution thought about that:

“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”

And as many of you set off on your summer vacations, consider this quote:

“Let me recommend the best medicine in the world: a long journey, at a mild season, through a pleasant country, in easy stages.”

Happy Fourth of July!!!

On June 3, 2008, California’s mid-year election process took place.  The early June date, which had historically been utilized as a primary for presidential candidate voting, was changed as of this year so that California’s presidential primary could be held in February, 2008.  Thus, the June 2008 elections concerned only local races, and several statewide propositions.  The primary battleground for this year’s statewide propositions was the debate between Propositions 98 and 99.

Proposition 98 would have dramatically altered how regulatory takings would be viewed in California and would have, potentially, substantially curtailed activities that many municipalities and counties undertake on a routine basis.  That threat to the status quo led to the California League of Cities, and similar groups proposing and qualifying Proposition 99.  Proposition 99 was publicized as the more reasonable and “less radical” revision of eminent domain law. 

Proposition 99, in terms of its “real world” legal effect and impact, is virtually identical to the existing status of eminent domain law in California.  The only real change is that a single family dwelling, owner occupied, may have slightly more protection under Proposition 99 then previously existed.  However, even that conclusion is subject to debate.

The primary thrust of the opposition to Proposition 98 was the phase out of rent control.  That message was sent with all of the radio and print publicity.  The anti-98 publicity and message sent to the public at large was emotional in content and was persuasively delivered.  The publicity gap was also reflected in the fact that the pro-99/anti-98 groups out spent the pro-98 group by almost 2-1.  The raw financial numbers indicate that the pro-99/anti-98 coalition spent close to $12 million.  The pro-98 backers spent approximately $7 million.  The result was a 61/39 voting result with Proposition 99 wining by that margin and Proposition 98 losing by that margin.

What lessons can be learned?  First, if eminent domain is truly the agenda, do not combine it with price control issues.  Rent control has a completely different political component in California than eminent domain.  Second, if you are pressing for a substantive change in the law, you need to very much “put your money where your mouth is.”  The rank and file property owners that would have benefited from the adoption of Proposition 98 clearly did not support it adequately.  The advertising that was effectively used by the anti-98 coalition was never addressed in any coherent or meaningful fashion.  That led to, essentially, an unrebutted message about the ills that would befall people and cities if Proposition 98 was passed.  Similarly, that was no theme or positive messages about the benefits of Proposition 98 that was brought forward. 

The “outrage” of the population at large, about the Kelo v. Connecticut decision may well not have the same fervor in California as other states.  Moreover, the instances of government actions that could provide the context of why Proposition 98 would be beneficial was not publicized in a fashion whereby the public could understand how and when government has overreached in its use of the police power.  More “human interest” stories are needed to demonstrate how the power of eminent domain is abused by actions of local agencies and municipalities.

One final thought.  The “tax revolution” that took place in California in 1978, with the adoption of Proposition 13, followed many years of turmoil about property taxes.  It took a number of battles before Proposition 13 was adopted.  Thirty years later the taxing agencies still hate Proposition 13 and blame it for all economic woes to budgets.

The concepts in Proposition 98 are viewed by many as aggressive.  The next battle needs to be better designed and better financed.  It will, undoubtedly, be another 3-5 years before that battle can realistically be rejoined.  Instances of how eminent domain is abused, which resonate with the population at large, will need to be gathered, correlated and documented.

Whatever one’s viewpoint of the merits of the propositions, the pro 99/anti-98 campaign was better financed and better run.  It was effective.  Unions, AARP, and other entities with perceived public that images favor “ordinary citizens” were the dominant voice in the campaign.  Those groups will continue to exist and exert their influence.  Thus, any ongoing endeavor to protect property rights needs a complete “face lift” in order to achieve success in the future.

On November 5, 2007, the California Supreme Court issued its decision in the Consulting Engineers and Land Surveyors of California, Inc. v. the Professional Engineers in California Government decision. The issue in the case was whether a collective bargaining agreement entered into by and between the State of California and the Professional Engineers in California Government was lawful, in its entirety, under Proposition 35.

Proposition 35, for the millions of you who do not recall, added a provision to the California Constitution specifically allowing the State of California to have contracts with private firms to provide architectural and engineering services for public works projects. Employees of the State of California lobbied vociferously against the ballot initiative.

What the Consulting Engineers case represents is the ongoing battle of those employed in governmental agencies to disregard political decisions of the voters and implement what they, the government employees, continue to believe is the better course of action. The inherent arrogance, and unwillingness to concede that their desire and point of view has been rejected, are mind boggling. Direct legal restrictions against implementing a different policy are being undermined whenever possible. This case is a prime example. Proposition 35 specifically set forth that private architectural and engineering firms could compete for and work on a public works projects. The collective bargaining agreement entered into by the state sought to effectively disregard that Constitutional provision and allow the same state employees to continue to have “preference.” In this seemingly rare occasion, the California Supreme Court has acted to vigorously defend and enforce the rights of the voters. Lest the readers of the blog not recall there are myriad other examples of this type of arrogant behavior.

Remember, for example, the adoption of Proposition 209. Again, whether one was for or against Proposition 209, it clearly and unequivocally set forth certain directions and policies. Proposition 209 demanded that quotas and other methodologies for achieving racial “balance” be eliminated as being unacceptable and contrary to the voters’ desires for the state Constitution. The number of cases and actions by both the State of California and municipalities such as the City of San Francisco seeking to disregard Proposition 209are appalling. For years afterwards, certain municipalities (such as San Francisco), and the government agencies governed by Proposition 209 continued to apply rules they thought were appropriate for dealing with the ongoing issues about race which obviously trace their history back to pre and post civil war realities of racial discrimination (segregation).

As the newest batch of voter initiatives come before the voters in this state in June, 2008, please bear in mind that your vote may or may not actually be heeded and followed by your community and government leaders. They remain, after all, absolutely convinced that they always know best.